[ G.R. No. 137297. January 25, 2000]

PEOPLE vs. RICHARD AGRAVANTE y ZANTUA

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 25 2000.

G.R. No. 137297 & 138547-48 (People of the Philippines vs. Ricardo Agravante y Zantua.)

For consideration is accused-appellant Ricardo Agravante's motion for admission of his motion for new trial and the motion for new trial itself on the ground of newly discovered evidence.

Accused-appellant's motion for new trial was filed beyond the period granted to him by the Court in the resolution of October 19, 1999. Accused-appellant's counsel moves for the admission of accused-appellant's motion for new trial on the ground that Criselda Agravante, whose testimony is the basis for accused-appellant's motion for new trial, arrived in Manila to execute her affidavit only after the period granted for filing the motion had expired on October 19, 1999.

The Court finds the motion to admit unmeritorious. There is no reason why accused-appellant's counsel could not have filed another motion for extension as soon as it became apparent that he could not obtain Criselda's affidavit in time for the deadline. For this reason, the motion to admit the motion for new trial should be denied.

In any event, the Court finds the motion for new trial to be without merit. Accused-appellant was convicted by the Regional Trial Court, Branch 40, Daet, Camarines Norte of three counts of rape of his 14-year old daughter Maria Agravante. During trial, accused-appellant claimed that his daughter brought false charges against him because he had punished her for absenting herself from class and for joining the Iglesia ni Kristo (INK).

The affidavit, dated November 27, 1999, executed by accused-appellant's niece Crselda Agravante states that, like her cousin Maria, she was recruited to join the INK by a certain Adelina Racho who invited her to work as a househelp because she might be the victim of incestuous rape which was the "trend of the times"; that she went to stay at Adelina Racho's house until her father Roberto came and took her but not before threatening Adelina Racho with the destructin of her house when Adelina denied that Criselda was staying with her; that Criselda had several conversations with her cousin Maria who told her how much she enjoined being an INK member and how she hated her (Maria's) stepmother who beat her as well as her father, herein accused-appellant, who failed to protect her from being abused; that she also knew that Maria had been sleeping with her boyfriend Ni�o; that in October 1994, she went to Pampanga and learned that he cousin Maria filed several criminal cases for rape against accused-appellant; that in 1999, she learned that accused-appellant was already confined at the national penitentiary; that in one of her prison visits to accused-appellants, she told him of her experience with Adelina Racho, who had similarly tried to influence her cousin Maria against accused-appellant.

Rule 121 �2 of the 1988 Rules on Criminal Procedure allows a new trial to be held on the ground of newly discovered evidence on the following conditions: (a) the evidence was discovered after the trial, (b) it could not have been discovered and produced at the trial despite reasonable diligence, and (c) it is of such weight that, if admitted, would probably change the judgment.

In this case, the evidence supporting accused-appellant's motion cannot be considered newly discovered. It had been existence even before the trial, only that the witness, Criselda Agravante, who knew about the matter was not presented during the trial. In effect, it amounts to no more than forgotten proof which would not justify an order to conduct new trial. (People v. Penesa, 81 Phil. 398 (1948)). Even if Criselda told accused-appellant what she knew only after he had been convicted, still it has not been shown that her testimony constitutes evidence that could not have been unearth without the exercise of reasonable diligence. After all, Criselda is a niece of accused-appellant. Although she had moved to Pampanga, it appears that she and accused-appellant had maintained contact. BY her own admission, she was aware of the filing of the rape charges against accused-appellant. Yet it took her five years from learning of the charges against accused-appellant to signify her willingness to give evidence in his favor.

Finally, the Court does not think that her testimony is of such weight that it would probably cause the acquittal of herein accused-appellant because the affidavit is merely of corroborative value and does not really concern facts constituting the crimes subject of these cases. (People v. Samaniego and Ong Ing, 95 Phil. 218 (1954)). It does not incontrovertibly show that accused-appellant did not commit the crimes with which he was charged.

WHEREFORE, accused-appellant's motion to admit motion for new trial and the motion for new trial itself are denied for lack of merit. Accused-appellant is ORDERED to file his appellant's brief within thirty (30) days from notice.

Very truly yours,

LUZVIMINDA PUNO

Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court


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